A man who ran away from people whom he believed wanted to attack him, but instead fell into an open manhole severely injuring his leg, has won his damages claim against a municipality.
Christopher Harding sued the Nelson Mandela Bay Metro in Gqebera for the damages he had suffered, as he claimed that the incident was due to the negligence of the municipality.
Harding testified in the High Court in Gqebera that he had stayed at a friend’s smallholding in Despatch on the evening of March 9, 2021.
He had borrowed his friend’s vehicle, visited a pub, and consumed alcohol. On leaving that establishment, car guards had asked for money and cigarettes. He returned to his friend’s house and then realised that his cellphone was missing.
He suspected that it had been taken from the car door at the time he had conversed with the car guards, while climbing into the vehicle. It was now past midnight. He returned on foot to an area close to where he had engaged with the car guards.
He met the person who had taken his phone, who was with three others. Having obtained the phone, an argument ensued. A man produced a knife and Harding believed that the men wanted to assault him.
He ran away and was chased before falling into the drain, landing on his left leg at the bottom of the drain and hearing his knee crack.
He phoned his friend, who assisted him back to the smallholding. The pain increased overnight, and an ambulance was called to take him to hospital the following morning, he said.
Harding said it was dark at the time of the incident. There was no street lighting and he had not seen the open drain.
He had subsequently returned to the scene twice, once during the day and once at night, so that he could show his fiancée how dark it was at that spot.
His evidence was that he had been unable to see the hole even when not in a panicked state. It was not visible even from one metre away, he said.
Harding admitted that he was drinking that night and that he had no sight in his right eye.
The version of the municipality was that a ward committee member had reported a damaged catchpit prior to the incident. A team had been sent to cover the drain and a yellow barrier had been erected around it.
Harding, however, maintained that the drain had been open and the barrier was not there at the time of the incident. It was, however, visible when he returned to the scene approximately six weeks after the incident.
A municipal worker testified that a complaint had been received from the councillor’s office, reporting the issue of a damaged stormwater drain in the area of the incident. According to her records, the drain was fixed in April 2021 -- a few weeks after the incident.
She explained that about 20 other drains were being repaired around that time and they were short staffed due to Covid-19.
Judge A Govindjee said on the municipality’s own evidence, the yellow barrier was damaged and, seemingly like many others, old and repeatedly reused.
Although the barrier was constructed so that it could have been filled with water or sand to add weight and stability to the structure, seemingly no proper thought had been given to this possibility.
“The municipality hoped, with misplaced faith, that the temporary yellow barrier it had chosen to cover the drain with would remain in place month after month without tampering, and seemingly had no mechanism to monitor this.”
A reasonably prudent person would have realised that the protection afforded to the public by way of a reused, damaged, unfilled plastic barrier placed on its side and left unchecked week after week was inadequate,” said the judge.
He ordered the municipality to pay Harding the damages he could prove that he had suffered.
Pretoria News